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HomeMy WebLinkAbout96-527 HuffmanRichard E. Deetz, Esquire 1 1 11 North Fifth Street Stroudsburg, PA 18360 Dear Mr. Deetz: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 12, 1996 96 -527 Re: Conflict, Public Official /Employee, Private Employment or Business, Township Supervisor, Business With Which He Is Associated, Independent Contractor, Prior Services to Developer, On -going Submission of Quotes. This responds to your letters of May 26, 1995 and June 7, 1995 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a township supervisor in matters involving a developer, where the supervisor was previously engaged by the developer as an independent contractor and continues to submit quotes for work to the developer, but has not been hired to perform work for the developer for approximately two years. Facts: As Solicitor to the Board of Supervisors of Middle Smithfield Township in Monroe County, Pennsylvania, you request an advisory on behalf of Mr. Jay E. Huffman, a member of that Board. On January 31, 1992, Deetz, Advice of Counsel No. 92 -520 was issued to you regarding this same Supervisor. At that time, Mr. Huffman, in his capacity as an independent contractor, was performing services for a developer who had matters pending before the Board of Supervisors. The Advice concluded that Mr. Huffman would have a conflict of interest in matters involving the developer and /or its clients. The Advice delineated the requirements for abstention and disclosure and also reviewed the applicability of Section 3(j) to a 3- member Board which deadlocks following abstention and disclosure by a member who has a conflict under the Ethics Law. Your most recent request for an Advice states that Mr. Huffman's services to the developer concluded approximately two years ago. Since that time, Mr. Huffman has not worked for the developer but he has, from time to time, quoted prices on projects for the developer. Under these circumstances, you ask how long Mr. Huffman Deetz /Huffman, 96 -527 March 12, 1996 Page 2 will be "disabled from voting" under the conflict of interest provisions of the Ethics Law. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Township Supervisor for Middle Smithfield Township in Monroe County, Pennsylvania, Mr. Jay E. Huffman is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public Deetz /Huffmart, 96 -527 March 12, 1996 Page 3 official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest, as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Factually, Mr. Huffman ceased working for the developer in question Deetz /Huffman, 96 -527 March 12, 1996 Page 4 approximately two years ago, but he continues to solicit work from that developer by submitting quotes. In Kannebecker Opinion No. 92 -010, the Commission concluded that a Township Supervisor would have a conflict as to individuals who had matters pending before the Township when the Supervisor was an attorney for those individuals in unrelated matters and the attorney /client relationship was on -going or the client was on a retainer. The Opinion further noted that circumstances could arise where a conflict may exist even as to past clients. Specifically, the Commission stated: However, as to former or past clients, we do not believe as a general rule that you would have a conflict. Under certain circumstances, a conflict could exist as to past clients; such would depend upon factors like the number of prior representations of any given client and the period of time over which that occurred. If and when such specific instances arise, you may seek additional advice as to each circumstance since all that we may do at this juncture is establish general guidelines and cannot proffer advice on every possible scenario which may arise. Id at 5. In Garner, Opinion No. 93 -004, after reviewing various precedents, the Commission reiterated under Act 9 of 1989 a principle which it had previously enunciated: that a reasonable or legitimate anticipation of a financial relationship may form the basis for a conflict of interest. In applying these precedents to the facts which you have submitted, although Mr. Huffman is not at this moment performing services for the developer, it is clear that there is an on -going attempt by Mr. Huffman to secure such work through his on- going submission of quotes to the developer. Furthermore, it has only been approximately two years since Mr. Huffman was actively engaged by that developer. In light of the relatively short period of time which has elapsed and especially in light of Mr. Huffman's on -going solicitation of work from the developer, at this time Mr. Huffman would continue to have a conflict of interest in matters involving the developer. In each instance of a conflict of interest, Mr. Huffman would be required to abstain and to fully satisfy the disclosure requirements of Section 3(j) as set forth above and in the Advice which was previously issued to you on his behalf. Additional advice may be sought from the Commission as circumstances change. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a Township Supervisor for Middle Smithfield Township in Monroe County, Pennsylvania, Mr. Jay E. Huffman is a public official subject to the provisions of the Ethics Law. As a Township Supervisor, Mr. Huffman would have a Deetz /Huffman, 96 -527 March 12, 1996 Page 5 conflict of interest as to a developer where Mr. Huffman was previously engaged as an independent contractor by that developer; only approximately 2 years have elapsed since such active engagement; and Mr. Huffman continues to seek work from the developer through an on -going submission of quotes for such work. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission wi11 be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2(h 1. The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. cerely, ncent'LjDopko Chief Counsel